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Iphostrou and Iphostrou & Ors (No 4)

Iphostrou and Iphostrou & Ors (No 4)

Case [2011] FamCA 220 31 March 2011

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FAMILY COURT OF AUSTRALIA

IPHOSTROU & IPHOSTROU AND ORS (NO 4)

[2011] FamCA 220

FAMILY LAW - COURTS AND JUDGES – Bias – Disqualification – Where the applicants requested that the primary judge recuse himself on the ground of apprehended bias in the form of prejudgment – Where prior to the application separate applicants had brought an application for disqualification – Whether the primary judge should recuse himself due to apprehended bias

Family Law Act 1975 (Cth), ss 79, 80, 106B

Australian National Industries v Spedley Securities (in Liq) & Ors (1992) 26 NSWLR 411, discussed
British American Tobacco Australia Services Limited v Laurie (2011) 85 ALJR 348; [2011] HCA 2, discussed
British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414, discussed
Dunwell & Dunwell [2011] FamCAFC 2, applied
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied

Iphostrou & Iphostrou and Ors (No. 2) [2011] FamCA 84, related

Iphostrou & Iphostrou and Ors [2011] FamCA 20, related

Iphostrou & Iphostrou and Ors (No. 4) [2010] FamCA 1183, related

Johnson v Johnson (2000) 201 CLR 488; [2010] HCA 48, applied
Kwan v Kang & Ors [2003] NSWCA 336, discussed
Michael Wilson & Partners Limited v Nicholls & Ors [2011] HCATrans 28, cited
Nicholls & Ors v Michael Wilson & Partners Ltd [2010] 243 FLR 177; [2010] NSWCA 222, discussed
Southern Equities Corporation Ltd (in Liq) v Bond [2000] 78 SASC 339; [2000] SASC 450, discussed
Strahan & Strahan (Disqualification) [2009] FamCAFC 204, cited

APPLICANT WIFE:

Ms E Iphostrou

1^ST RESPONDENT HUSBAND:

Mr S Iphostrou

2^NDRESPONDENT:

Mr P Iphostrou

3^RD RESPONDENT:

Mr J Iphostrou

4^TH RESPONDENT:

Mr V

8^TH RESPONDENT:

J Pty Ltd

12^TH RESPONDENT:

P Pty Ltd

REMAINING RESPONDENTS:

Corporate entities (Referred to in annexure attached)

FILE NUMBER:

MLC

8731

2009

DATE DELIVERED:

31 March 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

7 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:

Mr Burnside QC with Mr Edmunds

SOLICITOR FOR THE APPLICANT

WIFE:

Hallett West

COUNSEL FOR THE 1^ST RESPONDENT

HUSBAND:

Mr North QC

SOLICITOR FOR THE 1^ST

RESPONDENT HUSBAND:

Belleli King & Associates

COUNSEL FOR THE 2^ND, 3^RD AND

12^TH RESPONDENTS:

MS Loughnan SC with Mr Watts

SOLICITOR FOR THE 2^ND, 3^RD AND

12^TH RESPONDENTS:

Altus Lawyers

COUNSEL FOR THE 4^TH AND 8^TH

RESPONDENTS:

Mr Geddes QC with Mr Barbayannis

SOLICITOR FOR THE 4^TH AND 8^TH

RESPONDENTS:

Voitin Lawyers

COUNSEL FOR THE REMAINING

RESPONDENTS (CORPORATE ENTIES)

Referred to in Annexure to these reasons:

Mr Denton SC with Ms Djohan

SOLICITOR FOR THE REMAINING

RESPONDENTS (CORPORATE ENTIES)

Referred to in Annexure to these reasons:

Natalie Rompotis

Orders

That the application in a case filed on 7 March 2011 by Mr P Iphostrou, Mr J Iphostrou and P…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Iphostrou and Iphostrou & Ors (No 4)

Details

AGLC: Iphostrou and Iphostrou & Ors (No 4) [2011] FamCA 220
Case: [2011] FamCA 220
Decision Date: 31 March 2011

CaseChat Overview and Summary

In *Iphostrou and Iphostrou & Ors (No 4)*, the applicants, Mr P Iphostrou, Mr J Iphostrou, and P Pty Ltd (both in its own capacity and as trustee for the Iphostrou Family Trust), sought the recusal of the primary judge on the grounds of apprehended bias, specifically prejudgment. This application followed a prior, unsuccessful application for disqualification brought by separate applicants.

The central legal issue before Cronin J was whether the primary judge ought to recuse himself from hearing the matter due to apprehended bias. This required the court to consider the test for apprehended bias in the context of a judicial officer's prior conduct and statements.

Cronin J applied the established test for apprehended bias, which requires determining whether a fair-minded lay observer, knowing the facts, would apprehend that the judge might not bring an impartial mind to the issues the judge is to decide. The judge considered the history of the proceedings and the nature of the applicants' allegations. Ultimately, the judge found that the apprehended bias alleged by the applicants was not made out.

Consequently, the application for the judge's recusal was dismissed. The court then fixed the date for the final hearing of the wife's application, which was to commence on 14 June 2011.

Orders

Orders of the court

That the application in a case filed on 7 March 2011 by Mr P Iphostrou, Mr J Iphostrou and P Pty Ltd in its own capacity and as trustee for the Iphostrou Family Trust is dismissed.

That the final hearing of the wife’s application (as amended) filed 25 November 2010 be fixed before me to commence on 14 June 2011 at 10 am.

AND IT IS NOTED THAT all outstanding interim issues are otherwise already listed for hearing at 10 am on 28 April 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Iphostrou and Iphostrou & Ors (No 4) [2011] FamCA 220

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Cases cited in this decision · 21 of 21 shown

Iphostrou and Iphostrou and Ors (No 2)
[2011] FamCA 84 Para 1

…sought to be relied upon by senior counsel in this application I refer to my earlier reasons for judgment: see Iphostrou & Iphostrou and Ors (No 2) [2011] FamCA 84.…
Michael Wilson & Partners Limited v Nicholls & Ors [2011] HCATrans 28
[2011] HCATrans 28 Para 9

…currently the subject of a grant of special leave to the High Court made on 11 February 2011: see Michael Wilson & Partners Limited v Nicholls & Ors [2011] HCATrans 28.…
British American Tobacco Australia Services Ltd v Laurie
[2011] HCA 2

…s v Spedley Securities (in Liq) & Ors (1992) 26 NSWLR 411, discussed British American Tobacco Australia Services Limited v Laurie (2011) 85 ALJR 348; [2011] HCA 2, discussed British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414, discussed Dunwell & Dunwell [2011] FamCAFC 2, applied Ebner v O…
Iphostrou & Iphostrou and Ors
[2011] FamCA 20 Para 29

…by both parties and importantly said that the husband answered all of the allegations of the wife. I then observed, in Iphostrou & Iphostrou and Ors [2011] FamCA 20, that: 43.One significant dispute between the parties related to whether the various corporate entities owed the husband money. The wife pointed to a…
Dunwell & Dunwell
[2011] FamCAFC 2 Para 20

…However, in discussing the above authorities I note that recently Finn J in the Full Court judgment of Dunwell & Dunwell [2011] FamCAFC 2 (at paragraphs 20 to 24) stated the test for disqualification on the basis of apprehended bias. It should be noted that this decision was decided before BATAS . This is the test…
Minister for Immigration and Citizenship v SZJSS
[2010] HCA 48

…u & Iphostrou and Ors [2011] FamCA 20, related Iphostrou & Iphostrou and Ors (No. 4) [2010] FamCA 1183, related Johnson v Johnson (2000) 201 CLR 488; [2010] HCA 48, applied Kwan v Kang & Ors [2003] NSWCA 336, discussed Michael Wilson & Partners Limited v Nicholls & Ors [2011] HCATrans 28, cited Nicholls & Ors v…
Iphostrou and Iphostrou and Ors (No 4)
[2010] FamCA 1183 Para 18

…s for judgment in relation to the ruling as to the admissibility of the “illegally obtained” documents (see Iphostrou & Iphostrou and Ors (No. 4) [2010] FamCA 1183) or the litigation funding application (see Iphostrou & Iphostrou and Ors [2011] Fam CA 20) that I have created an impression that I will continually acc…
Nicholls v Michael Wilson & Partners Ltd
[2010] NSWCA 222

…ussed Michael Wilson & Partners Limited v Nicholls & Ors [2011] HCATrans 28, cited Nicholls & Ors v Michael Wilson & Partners Ltd [2010] 243 FLR 177; [2010] NSWCA 222, discussed Southern Equities Corporation Ltd (in Liq) v Bond [2000] 78 SASC 339; [2000] SASC 450, discussed Strahan & Strahan (Disqualification) [200…
British American Tobacco Australia Services Limited v Laurie
[2010] HCATrans 223 Para 5

…In British American Tobacco Australia Services Limited v Laurie (2011) 85 ALJR 348 ( BATAS ) the majority, Heydon, Kiefel and Bell JJ set out the apprehended bias test as follows (at 139): It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualificati…
British American Tobacco Australia Services Ltd v Laurie
[2009] NSWCA 414 Para 10

…fictitious objective “fair-minded lay observer” as explained in Allsop P’s reasons in British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 and in Johnson v Johnson (2000) 201 CLR 488.…
Strahan & Strahan (Disqualification)
[2009] FamCAFC 204 Para 4

…The test stated in Ebner and Johnson was affirmed by the Full Court of this Court in Strahan & Strahan (Disqualification) [2009] FamCAFC 204 at paragraphs 3 and 4. This test is set out in paragraph 4 of the reasons for judgment in the first recusal application: see Iphostrou & Iphostrou and Ors (No. 2) [2011] FamCA 8…
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
[2006] HCA 55 Para 21

…r in relation to the wife’s solicitors. (See also the observations in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 of Gummow ACJ at [4] and Callinan J at [173] to [180].)…
Kwan v Kang
[2003] NSWCA 336 Para 30

…In Kwan v Kang & Ors [2003] NSWCA 336, the New South Wales Court of Appeal considered the refusal by a trial judge to disqualify himself for apprehended bias after making findings of an absolute and unequivocal nature in an interlocutory hearing.…
Southern Equities Corporation Ltd (In liq) v Bond
[2000] SASC 450

…v Michael Wilson & Partners Ltd [2010] 243 FLR 177; [2010] NSWCA 222, discussed Southern Equities Corporation Ltd (in Liq) v Bond [2000] 78 SASC 339; [2000] SASC 450, discussed Strahan & Strahan (Disqualification) [2009] FamCAFC 204, cited…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63

…vices Ltd v Laurie [2009] NSWCA 414, discussed Dunwell & Dunwell [2011] FamCAFC 2, applied Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied Iphostrou & Iphostrou and Ors (No. 2) [2011] FamCA 84, related Iphostrou & Iphostrou and Ors [2011] FamCA 20, related Iphostrou & Iphostrou…
Johnson v Johnson
[2000] HCA 48 Para 3

…The Court of Appeal referred to the “well-settled” test articulated in Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 which the High Court stated was to be applied in Australia to determine whether a judge is disqualified for reason of apprehension of bias in the form of…
Laws v Australian Broadcasting Tribunal
[1990] HCA 31 Para 10

…h one. It is a matter of impression. Despite that, the element of reasonableness is still very important: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.…
Vakauta v Kelly
[1989] HCA 44 Para 16

…In his Honour’s reasons, Mahoney JA (at 435, citing Vakauta v Kelly (1989) 167 CLR 568, at 575 to 576 per Dawson J), observed that prejudgment as opposed to bias “refers more to the fact or suggested likelihood that, because he has once reached a conclusion upon an issue of fact or credit one way, a judge will subseq…
Livesey v New South Wales Bar Association
[1983] HCA 17 Para 29

…Bleby J observed (citing Livesey v NSW Bar Association (1983) 151 CLR 288 at 300) that his Honour had “expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact”. Th…
Briginshaw v Briginshaw
[1938] HCA 36 Para 11

…rity of the High Court in BATAS affirmed Allsop P’s reasoning, Gummow J at paragraph 101, found that his Honour had incorrectly applied the test in Briginshaw v Briginshaw (1938) 60 CLR 336 in attributing to the lay observer a conclusion that the judge was satisfied “of dishonesty to a degree that no further evidence could dissu…
Briginshaw v Briginshaw
[1938] HCA 34 Para 11

…n BATAS affirmed Allsop P’s reasoning, Gummow J at paragraph 101, found that his Honour had incorrectly applied the test in Briginshaw v Briginshaw (1938) 60 CLR 336 in attributing to the lay observer a conclusion that the judge was satisfied “of dishonesty to a degree that no further evidence could dissuade the cou…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
106B, 79, 80 4 mentions